Relations Between the Parliament and the Executive

Power: Relations Between the Parliament and the Executive

Jim Chalmers and Dr Glyn Davis
Politics and Public Administration Group
7 November 2000

Vision in Hindsight

Vision in Hindsight is a Department of the
Parliamentary Library (DPL) project for the Centenary of
Federation.

The Vision in Hindsight: Parliament and the
Constitution will be a collection of essays each of which
tells the story of how Parliament has fashioned and reworked the
intentions of those who crafted the Constitution. The unifying
theme is the importance of identifying Parliament's central role in
the development of the constitution. In the first stage, essays are
being commissioned and will be published, as IRS Research Papers,
of which this paper is the twelfth.

Stage two will involve the selection of eight to ten of the
papers for inclusion in the final volume, to be launched in
conjunction with a seminar, in November 2001.

A Steering Committee comprising Professor Geoffrey Lindell
(Chair), the Hon. Peter Durack, the Hon. John Bannon and Dr John
Uhr assist DPL with the management of the project.

The relationship between the Executive and the
Parliament is the buckle which joins a system of government. It
determines the character of national politics, the role of key
public institutions, and the balance between government and the
broader political system. In Australia, the reluctance of our
founders to make explicit the relationship between Ministers and
the Parliament has allowed disciplined political parties to thrive
and has facilitated Executive dominance. Power has become skewed in
the Executive's favour, replacing the Parliament as the primary
forum for decision making with the party room. The folly at the
heart of the founders' blueprint for the Australian system of
government was the presumption that 'responsible government' would
exist despite warnings of impending party consolidation. Today's
system of party, rather than parliamentary, government is the
result of gaps left in the Commonwealth Constitution.

This paper explores the implications of this
folly for the Commonwealth Constitution. The argument of the paper
follows the conventional wisdom: that the Executive dominates and
controls the Parliament as a consequence of a disciplined two-party
system.

The founders debated at length theoretical and
operational concerns such as the composition of the Executive,
alternative federal models, the election of Ministers, and,
importantly, notions of responsible government. Yet because they
failed to heed warnings that parliamentary government would become
party government, the founders relied on untenable transplanted
conventions about accountability through independent parliamentary
votes and the compulsion that Ministers must be, or become within
three months, a member of either House. The founders hoped
conventions would reconcile the hybrid British and American model
of Australian government. This paper explores how this decision was
taken, and the consequences which emerged after the first decade of
Federation.

Since 1910 there have been occasional flickers
of hope for a revival of Parliament as a more significant part of
the political system, often centring on the role of the Senate or a
growing scope for committee input. We examine these trends and
current proposals for reform, but remain pessimistic the overall
balance will much change. While the Commonwealth Constitution
remains ambiguous about the role of the Executive, and the
Executive controls the means for reform, the architecture of 1901
will remain.

Though aware of the risk of 'party government',
the constitutional founders underestimated the extent to which
parties and, by extension the Executive, would dominate the
Commonwealth Parliament. Though considered at the Convention
debates, delegates nonetheless crafted constitutional arrangements
that made traditional responsible government (however shadowy the
definition) reliant on independent votes, moving coalitions of
interests, and on a Senate as the defender of state, rather than
party, interests. For those seeking to establish responsible
government in Australia, these were not wise assumptions for the
coming century.

The fusion of the non-Labor parties and the
emergence of a disciplined and increasingly successful Labor Party
at the end of the Parliament's first decade set the pattern for a
century of two-party parliamentary politics. By facilitating
Executive dominance, the rise of political parties profoundly
undermined the notions of responsible government upon which the
Parliament was designed.

The consistent winner of the 'trinitarian
struggle' between the Executive, House of Representatives and the
Senate has been the Executive. The Senate's changed role after it
became elected by proportional representation from 1949 created
some hope for increased scrutiny as the result of minor party
representation. While the character of the Senate, the scrutiny of
Question Time, and the probing of parliamentary committees
constrain the power of government, the Parliament has, however,
remained a forum dominated by Ministers of state.

Though party loyalty within the electorate is
declining, the persistence of single member constituencies and
preferential voting ensure parties will remain in control of
Parliament. Perhaps the future will see more independent members
elected, but the pattern set by 1910 seems likely to persist for
some time. The ideal of a chamber which is a forum for discussion
followed by the casting of votes free from party discipline remains
fanciful. While party discipline has not been absolute, and members
have on occasion crossed the floor, government defeats in the
House, as seen in 1941, remain the exception rather then the rule.
While parties control the Executive, and the Executive the
Parliament, real reform without fundamental constitutional change
is not possible.

We find the founders at fault for constructing a
folly. The Constitutional Convention records show a strong shared
belief in responsible government. Yet the presumption was not made
explicit, thus allowing Executive dominance to evolve. The founders
left a vacuum at the centre of their Constitution, and Ministers
have filled a space which might otherwise belong to the Parliament.
Legislative power was to be vested in 'a Federal Parliament, which
shall consist of the Queen, a Senate, and a House of
Representatives', but in practice control over the Parliament's
agenda, its legislative program, order of business and even
frequency of meeting are all in the hands of Ministers.

The founders did not benefit from the certainty
granted by hindsight. The Conventions show widespread agreement
that responsible government was the preferred model for Australian
democracy. By responsible government, delegates had in mind
ministerial accountability to the Parliament. Yet in deciding not
to spell out the requirement for responsible government, or the
mechanisms to sustain it, the constitutional authors bowed before
the difficulty of the task. The decision to be silent on the
requirements of ministerial accountability set a pattern of
Executive dominance that continues today and will almost certainly
characterise the second century of the Australian Commonwealth
Parliament.

Introduction

Historian Barbara Tuchman once drew a
fascinating distinction between a mistake and a
folly.(1) We all make mistakes from time to time-a
foolish choice reached either through ignorance or failure to think
through the consequence of our decision. Mistakes often become
clear only in hindsight. Folly, however, is something altogether
richer. A folly has three key characteristics. The policy decision
must have been considered counterproductive in its own time. A
feasible alternative course of action must have been available. And
the folly must be product of a group of people, and persist beyond
the political lifetime of its authors. Tuchman defines folly as the
'pursuit of policy contrary to self-interest.'(2)

At the heart of the Commonwealth Constitution
sits such a folly. The Constitution establishes a basic framework
for national government in Australia. It is the product of a decade
of debate, as men of ability and talent argued about how to design
a system of government which drew on the best characteristics of
British, Canadian and American systems. Australia's constitutional
founders met in Adelaide, Sydney and Melbourne to discuss and
debate the federation of Australia's colonies.(3)
Central to this constitutional dialogue was the question of how the
Executive might relate to the legislature. Should it be separate
and independent as in the United States, or fused with the
Parliament as in Westminster? And if, as proved the case,
Constitution authors chose the British option, how would this to be
reconciled with a bi-cameral, federal structure drawn from American
practice?

The relationship between the Executive and the
Parliament is the buckle which joins the Australian system of
government. It determines the character of national politics, the
role of key public institutions, and the balance between government
on the one hand and the broader political system on the other. For
Prime Minister Malcolm Fraser, commenting in 1977:

the principle of responsibility-to the
electorate and the Parliament-is a vital one which must be
maintained and strengthened because it is the basis of popular
control over the direction of Government and the destiny of the
nation. To the extent that it is eroded, the people themselves are
weakened. If the people cannot call to account the makers of
Government policy, they ultimately have no way of controlling
public policy, or the impact of that policy on their own lives. For
the Government to be truly accountable to the people and
Parliament, the electoral and Parliamentary machinery must of
course work effectively and democratically.(4)

The Australian constitutional founders knew
this, and debated the topic at length. But at decision time, and
despite contemporary warnings, the founders avoided a specific
formulation. As the constitutional scholar Michael Crommelin has
argued, they deliberately left the detail of the
Parliament-Executive relationship flexible, rather than make a
choice between competing visions of the relationship.(5)
The non-committal provisions included in the Constitution neither
resolved the debate between contending models nor codified the
respective roles of Ministers and Parliament. Stating only that
minsters must be, or must become within three months, a member of
either House, the founders left the core relationship to historical
evolution. This decision created an unhelpful ambiguity and, over
time, allowed circumstances rather than intention to dictate the
relationship between the Executive and the Parliament.

A century on, it is clear the Executive has come
to dominate the Commonwealth Parliament. This is the result of a
development that postdates the Constitution, the rise of
disciplined modern political parties. With party majorities secure,
at least in the House of Representatives, the Parliament is made
subordinate to the party-room of the governing Executive. This has
led to familiar criticisms of Parliament as a 'rubber stamp' for
the wishes of the Executive or as an 'elective dictatorship'.
Critics of the dominance of the Executive, particularly in the
House of Representatives, argue that Parliament has ceased to be a
body of review and scrutiny, with its usefulness in
decline.(6)

This successful colonisation of power by
political parties was made possible by the folly of an ambiguous
Constitution. Because party discipline has been so strong in
Australia, the party able to garner a majority of seats in the
House of Representatives can legislate and govern with few
restrictions on its activities. While important developments such
as the expansion of the committee system and the loss of major
party control of the Senate have made some inroads on the
imbalance, Australia's parliamentary system remains essentially
bi-polar, with a winner-takes-all approach.

In the Federation debates, most speakers drew on
a traditional British language of ministerial responsibility and
accountability. They appeared to expect an important role for the
Parliament in holding the Executive to account. But the founders
failed to codify that role or to provide the Parliament with
accountability mechanisms outside simple majority rule (for
example, by insisting on an independent speaker, committees chaired
by non-government Members, individual election of Ministers or
confirmation of senior public service and statutory appointments by
Parliament). If the intention was British-style responsible
government, as the historical record suggests, then the folly at
the centre of the Constitution disappointed such hopes.

Not all voices in the Federation debate
supported a Westminster-style system for Australian national
government. From the outset, the founders considered non-British
institutions to draw together the separate Australian colonies but,
at the same time, preserve some of their autonomy. So the
relationship between the government drawn from a majority of the
Lower House, and the influence of a state-based Senate was always
part of the Federation debate. So too was the influence of
political parties. Alfred Deakin, for example, accurately predicted
that a new Senate would be dominated by party rather than state
interests. Nonetheless, the founders hoped conventions would arise
to square the circle, to reconcile the incoherent blend of British
responsible government with American federalism.

This paper explores the implications of the
Commonwealth Constitution for the relationship between the
Executive and the Parliament. The argument of the paper follows the
conventional wisdom of Australian political commentary: that the
Executive dominates the Parliament due to its control over
information and procedure. This dominance has arisen as a
consequence of a disciplined two-party system. Because they failed
to heed warnings that parliamentary government would become party
government, the founders relied on untenable transplanted
conventions about accountability through independent parliamentary
votes. We explore how this decision was taken, and the consequences
of the party system which emerged within a decade of Federation.
Since 1910 there have been occasional flickers of hope for a
revival of Parliament as a more significant part of the political
system, often centred on the role of the Senate. We examine these
trends and current proposals for reform, but remain pessimistic the
overall balance will much change. While the Commonwealth
Constitution remains ambiguous about the role of the Executive, and
the Executive controls the means for reform, the architecture of
1901 endures.

While the origins of the Australian Federation
have received much needed elaboration in recent publications, it is
useful to sketch the course of Federation as it touched upon the
relationship between Parliament and the Executive.(7)
The push for union can be traced to the middle of the nineteenth
century, when some sections of colonial opinion began advocating
common defence and fiscal policies. In 1846 NSW Governor Fitzroy
suggested a central authority for the colonies, an idea supported,
briefly, by British Colonial Secretary Earl Grey. While enthusiasm
for a union ebbed and flowed throughout the second half of the
century, in 1883 a Federal Council was established to discuss
matters of common interest to the colonies. It was not a promising
start. The Council held no executive or revenue powers, and New
South Wales did not take part. Yet it was NSW Premier Sir Henry
Parkes who revived the push for federation in 1889 with a speech at
Tenterfield calling for, among other things, 'a parliament of two
Houses, a house of commons and a senate, which would legislate on
all great subjects'.(8)

Following the Tenterfield speech, a conference
held in Melbourne in 1890 was attended by representatives from the
seven Australian colonies and New Zealand. Parkes moved a motion,
seconded by Victorian MLA Alfred Deakin:

that, in the opinion of this Conference, the
best interests and the present and future prosperity of the
Australian Colonies will be promoted by an early union under the
Crown, ... under one legislative and executive Government, on
principles just to the several Colonies.(9)

A federal Constitution was then drafted by
delegates, in particular Queensland Premier Samuel
Griffith,(10) at the Sydney Convention in 1891 and
submitted to the colonies for consideration. Enthusiasm for the
draft was modest, however, particularly after Parkes lost office in
NSW and so could not lead the movement. Momentum returned when the
Australian Natives' Association organised a conference in 1893 for
those favouring federation. The Corowa meeting devised a new
process for choosing delegates to draft a federal Constitution for
submission to the people. Conventions followed in Adelaide, Sydney
and Melbourne in 1897 and 1898, before the Constitution was passed
in the colonies (with the exception of Western Australia) during
1898 and 1899. The legislation was enacted in Britain in 1900, with
the Commonwealth officially proclaimed on 1 January
1901.(11)

A succession of Federation Conventions provided
an important opportunity to work through system design issues for
the proposed Commonwealth. Principal topics included the
composition of the Executive, the difficulties of reconciling
responsible government with federalism, and early warnings about
the effect of party government.

The composition of the Executive was among the
least contentious matters to arise throughout the Convention
debates. As Michael Crommelin has also argued, at:

no stage was it seriously contested that the
executive should comprise the Queen, a Governor-General, a Federal
Executive Council, Ministers and Departments.(12)

Republicanism and the direct election of the
Governor-General were very briefly considered but quickly rejected.
The draft Bill coming out of the 1891 Convention read:

for the administration of the executive
government of the commonwealth, the Governor-General may, from time
to time, appoint officers to administer such departments of state
of the commonwealth as the Governor-General in council may from
time to time establish, and such officers shall hold office during
the pleasure of the Governor-General, and shall be capable of being
chosen and of sitting as members of either house of
parliament.(13)

This was altered at subsequent Conventions and
reflected in the 1897 Bill, when delegates decided (though not
unanimously) that Ministers must sit in one of the Houses,
or be elected to sit within three months. This compulsion for
Ministers to be parliamentarians, found in s. 64 of the
Constitution, effectively fused the legislative and Executive arms
of government. Edmund Barton best sums up the rationale for the
insistence that Ministers also be parliamentarians. Introducing the
provision, he argued:

if the honourable member is in doubt that the
system of government under which the machinery of this Bill will
operate will be responsible government as we understand it, that
doubt will be altogether removed by the requirement of the presence
of Ministers in Parliament.(14)

His proposal led to some of the more passionate
debates involving wider notions of responsible government or
ministerial responsibility, and federalism.

The concept 'responsible government' is
contentious, and is addressed in detail elsewhere in this series.
For our purposes, a quote from Henry Parkes provides a useful
explanation of his conditions for responsible government. In the
words of Parkes, the Executive's 'term of office shall depend upon
their possessing the confidence of the house of representatives,
expressed by the support of the majority'.(15) Thus
Ministers hold office at the pleasure of the Lower House, and must
answer to Parliament for their actions. This traditional British
notion of responsible government finds its underpinnings in early
conservative political philosophers such as Edmund Burke, later
liberal thinkers including J. S. Mill, and the legal commentaries
of A. V. Dicey.(16) Not all commentators were as
sanguine; Walter Bagehot dismissed the House of Commons as an
'electoral chamber; it is the assembly which chooses our
president'.(17) Nonetheless, for Parkes and his
Australian colleagues, responsible government required Ministers to
sit in Parliament where their actions could be scrutinised by their
peers.

There was less agreement on how to reconcile
responsible government with federalism. In Britain the House of
Lords did not pose the same problem, since it had no independent
electoral base, and powers of review which were rarely exercised.
(When a few years later the Lords did assert their authority, the
peers were defeated and their powers circumscribed in the
consequent constitutional crisis). The proposed Australian
Constitution, however, included a Senate with significant, perhaps
even equal, power to the Lower House. In theory, such a Senate
could find itself in dispute with both the Executive and the House
of Representatives. Who then should prevail? The draft Constitution
allowed double dissolutions to resolve major disputes, but how
would the ordinary day-to-day business of the Executive be
transacted? This problem exercised minds across a number of
Federation Conventions. It found expression in broad questions
about the compatibility of two Houses, and practical issues such as
where Ministers would reside. Indeed one contemporary commentator,
Brian Galligan, has argued that the major issue of the Convention
debates was the incompatibility of responsible government and a
bicameral legislature.(18)

Delegates appeared to agree that responsible
government required responsibility of Ministers to one
House,(19) following the example of the British House of
Commons. Yet the proposed system created two Houses, with Ministers
in each, and allowed both to modify legislation advanced by the
Executive. A government with a majority in the Lower House could
thus find its program rejected by the Senate. Sir John Hackett,
describing the dilemma, commented famously 'either responsible
government will kill federation, or federation in the form in which
we shall, I hope, be prepared to accept it, will kill responsible
government'.(20) Sir Richard Baker also favoured a
powerful Senate, while Deakin preferred responsible government at
the expense of the Senate. He argued the Convention should 'place
within the popular house, with all the authority attached to those
who directly represent the people, responsible Ministers, who are
to hold their seats only so long as they can justify their actions
to that chamber'.(21) In 1891 a third group, led by
Parkes and Barton, championed co-existence. According to Galligan,
this group recognised that responsible government was required
'because familiarity and history had sanctified it, and federal
bicameralism because small states demanded it as a condition of
federation'. Further, co-existence could work as the result of the
'traditional good sense that was part of the British culture
inherited by the Australian colonies'.(22) Subsequent
debates were to deal with the more technical aspects of the
relationship, including, for example, provision for the breaking of
deadlocks.

The resulting hazy outline provided for in the
constitutional wording reflected the impossibility of finding
agreement between these contending schools, or of reconciling their
proposals. Before agreeing not to agree, however, constitutional
delegates explored alternative institutional structures and
relationships of power. A modified version of the Swiss model was
proposed by South Australians Richard Baker and Sir William Downer
but was not widely supported and quickly negatived.(23)
This model allowed for the election of ministries for a set period,
to counteract the detrimental effect of party on the operation of
responsible government. The Baker-Downer model attracted support
from the editor of The Age. The Melbourne newspaper argued
in favour of an elected ministry in 1891, which it contended would
result in:

no striking at ministers through their policy;
no rejecting of good measures in order to bring about a change in
government ... There would be no secrecy, no screening of
colleagues; the public would know, in every instance, who was to
blame for the mismanagement; the delinquent alone would be liable
to censure or punishment, and the administration of affairs would
pass into the hands of efficient and capable
men.(24)

From his seat in the South Australian Parliament
in 1891, Cockburn agreed:

the best men would be chosen from the whole
House instead of from only one side. Collective responsibility
would go, but there would be more bills from private members, and
the individual responsibility of each minister for his department
would be increased.(25)

The issue of ministerial responsibility was
linked closely with the question of relative power for the two
Houses. Reid's amendment to disallow the Senate power to amend tax
bills was thought to have the effect of placing the majority of
Ministers in the Lower House, subject to other political and
electoral considerations. Given financial powers, the Lower House
was seen as the more likely home for Ministers, though the
imperatives of geographic representation ensured some Ministers sat
in the Upper House.

Ultimately, no agreement could be found on the
vexed issue of responsible government versus federalism. The
founders chose to leave the verdict to history. They agreed
Ministers would be drawn from the legislature, and wrote this into
the Constitution. Delegates were more circumspect about the other
elements of responsible government. Despite some support for the
inclusion of the term 'responsible government' in the Constitution,
the majority of delegates sought a more flexible form of words. In
1891, for example, Griffith defeated a suggestion that Ministers be
called 'responsible ministers.' In 1897 Barton supported the notion
of responsible government but contended that the term 'his
responsible advisers' be omitted from the draft Bill because the
task at hand was to construct a system that would last for
centuries, thus endorsing the flexible approach.(26)
Griffith argued that 'it was unnecessary, and undesirable, to say
that their term of office should depend on their retaining the
confidence of the legislature'.(27) So rather than
resolve the relationship between responsible government and
federalism, he urged delegates to adopt 'a constitution so elastic
as to allow of any necessary development that may take
place'.(28)

The Constitutional Conventions thus bequeathed a
minimal Constitution. Underlying principles are implied, at best.
Responsible government must be assumed from the compulsion for
Ministers to sit in either House (s. 64). Other sections relating
to the Parliament and the Executive outline only the broad
structure of government and legislative power (s. 1), the location
of Executive power (s. 61) and provisions for a Federal Executive
Council (s. 62).(29) According to one constitutional
expert, 'chapter II intended to mask rather than prescribe the
workings of the Executive'.(30) With the rise of
disciplined parties, the Executive became the beneficiary of the
reluctance by Australia's constitutional founders to make explicit
relationships of scrutiny and responsibility.

Many things were said at the Conventions, some
prophetic, most forgotten. But since one test of folly is that the
decision must be considered counterproductive in its own time, it
is worth noting that many influential voices anticipated the rise
of parties and the risk for the proposed Constitution. Deakin and
others argued that responsible government would be replaced by
party government as the Parliament evolved. Further, suggested
some, the role of political parties could prevent the Senate
operating as a States' House. Speaking in Sydney in 1891, Deakin
argued that:

we shall never find in the future federation
certain states ranked against certain other states, or that party
lines will be drawn between certain states which happen to be the
more populous ... this appears to me a wholly mistaken reading of
the situation. What is absolutely certain is that, as soon as this
federation is formed, parties will begin to declare themselves in
every state. Every state will be divided. Our form of government is
not susceptible of continuous or successful working without
parties.(31)

Sir Patrick Jennings of New South Wales and John
Macrossan of Queensland also foresaw the predominance of party
considerations in voting, with the latter commenting in Sydney in
1891:

we have been arguing all through as if party
government would cease immediately we adopt the new constitution.
Now, I really do not see how this is to be brought about ...
Parties have always existed, and will continue to exist where free
men give expression to their opinions.(32)

Though aware of the risk of 'party government',
the founders underestimated the extent to which parties and, by
extension the Executive, would dominate the Commonwealth
Parliament. The formation and maintenance of disciplined Labor and
non-Labor parties was to be the primary influence on the operation
of both Houses. Though considered at the Convention debates,
delegates nonetheless crafted constitutional arrangements that made
traditional responsible government (however shadowy the definition)
reliant on moving coalitions of interests, and on a Senate as the
defender of state, rather than party, interests. For those seeking
to establish responsible government in Australia, these were not
wise assumptions. This folly, the product of founders who ignored
warnings from their colleagues and the press, was to survive the
twentieth century and endure into the next. Tuchman's prerequisites
for policy contrary to self-interest have been filled.

The turn of the century saw the Earl of
Hopetoun, Australia's first Governor-General, call former NSW
Premier William Lyne to form the first federal ministry. When Lyne
was unable to do so, Edmund Barton obliged, with Deakin as his
Deputy and Attorney General.(33) The next decade proved
crucial to the development of the Australian political system
generally, and to the Parliament-Executive relationship
specifically. As another recent commentator argues, 'over the
period 1901-9 the foundations of contemporary Australian political
institutions, policies and attitudes were laid. These were
consolidated and given durable reach through the two-party regime
established in 1909.'(34)

When the first federal Parliament opened in the
temporary national capital, Melbourne, on 9 May 1901, legislators
turned their attention to replacement of various state customs and
excise regulations with uniform provisions. The Audit Act,
State Laws and Records Recognition Act, Service and
Execution of Process Act, Royal Commissions Act and
Commonwealth Public Service Act followed, and were all
passed before 1902. The Commonwealth Franchise Act of 1902
established uniform voting rules.(35) The first decade
of the Parliament was broadly dedicated to these electoral and
fiscal matters, and to enduring policy directions such as White
Australia, arbitration and industrial relations, and 'New
Protection'.(36) The gag, an important instrument for
Executive control of the Parliament, was first introduced in 1905.
The move was significant, because while the period 1901-9 saw
various combinations of ministries and Prime Ministers, it was the
moment when an emerging party discipline substantially
circumscribed the role of Parliament.

The formation and maintenance of Australia's
strict two-party system is the determining factor in the
relationship between the Executive and the Parliament. Australian
political parties began at the state level, and various
protectionist and free trade groupings were formed in the federal
Parliament from these state organisations. In the first decade of
the new Parliament the parties gradually became more stable,
replacing the factional system of moving coalitions based on state
interests with ideology-based parties. By April 1910 Deakin had
united the two anti-Labor parties under the title 'Liberal' while
Labor had won a clear majority in a federal election. Australia
thus arrived at the two-party system which still dominates national
politics. In this the Commonwealth followed a similar consolidation
of party forces in Britain and Germany some twenty years earlier,
in the years before the Federation Conventions.(37)

Alfred Deakin's letters to the Morning
Post offer an insight into the strategies and actions of
parties in the pre-fusion period.(38) He reports that
Labor, Free Trade and Liberal-Protectionists dominated the first
Parliament after the March 1901 elections (see Table 1, below, for
a summary of subsequent election results during the period
1901-1909), with Labor generally supporting Barton's Protectionist
group. Between 1903 and 1904 a stalemate developed between the
three major parties, each with the same number of representatives.
In a 1904 speech to Parliament, Deakin described the situation as
like a game of cricket with 'three elevens'. Two years later Deakin
commented that:

we have therefore three parties and three
leaders instead of two. As a consequence we must suffer from
political confusion, unrest, and uncertainty, while no one of them
is strong enough to control Parliament
independently.(39)

Uncertainty led to frequent changes of
government, with parties changing allegiances to reflect policy
positions and personal relationships. As Table 2 demonstrates, the
first decade of Federation saw regular transfer of government and
the prime ministership. Such movement indicates the degree of
instability created by a Parliament without clear majorities and
full parliamentary terms in which to make and implement policy.
Table 2 further illustrates the frequency of changes in government
and reasons for their demise.

In 1909 the non-Labor forces led by Deakin, Cook
and Forrest negotiated an alliance that installed Deakin as leader.
The new Prime Minister reported on the non-Labor fusion when he
wrote:

at last the Federal political situation has
crystallised. So far as Parliament is concerned the fusion of our
Constitutional parties, long prayed for, continually predicted,
but, up until last week, perpetually postponed, has been completed
in two days. For the last four years the prospect of this union has
appeared and vanished like a mirage tempting many eager pilgrims to
its vain pursuit.(43)

The merger of the non-Labor groupings in
Parliament 'marked the defeat of the liberal conception of
representation',(44) with parties becoming the
significant actors in parliamentary activity. This dominance soon
transferred to the electoral arena, with parties strengthened and
resourced outside Parliament.(45) The responsibility for
making and breaking governments had passed from parliamentarians to
political parties and so, arguably, to the electorate.

But why did the fusion of the Free Traders and
Protectionists occur? The difficulties associated with governing in
an environment of shifting coalitions were one reason for the
fusion of non-Labor at the end of the first decade of Parliament.
Other explanations revolve around the increasing strength,
discipline and success of the Labor Party. Bound by caucus
decisions and using this block vote to secure concessions for its
constituency, Labor developed into an electorally successful party
with a strong organisational presence which could deliver
disciplined members to both Houses. Reid and Forrest argue that
the:

trend towards extra-parliamentary
decision-making was undoubtedly started by the Labor Party with its
caucus arrangements, but it was quickly emulated by its
competitors.(46)

Similarly, the pledge of discipline taken by
Australia Labor Party (ALP) members, while not codified by their
political opponents, had the effect of creating a similar climate
of discipline on the other side. Further, the Parliament's
attention turned to defence matters in the latter part of the
decade, a policy area in which the Free Traders and Protectionists
held similar views.(47) Ian Marsh contends Labor's
electoral success by 1906, largely at the expense of the
Protectionists, 'stiffened' the ALP's resistance to an alliance
with Deakin as it became more likely that Labor could eventually
govern alone. Labor Prime Minister Fisher saluted his party's 1910
victory as a culmination of 'twenty years of arduous
work'.(48)

The fusion of factions into disciplined
political parties replaced responsible ministerial government with
responsible party government.(49) At first Liberal
leaders criticised Labor Members of Parliament for making decisions
in their party room rather than the chamber; concern over the
discipline of the Labor caucus room prompted George Reid to
describe Parliament as:

not responsible to the people at all. It is
responsible to an assemblage of members known as the labour caucus
... away from the light of Parliamentary scrutiny and discussion
... You are giving up the grandeur of your parliamentary system,
which looks upon Ministers, not as the minions of a caucus, but as
the trustees of a nation.(50)

Yet the practice of party room discipline soon
dominated all parliamentary procedures, Labor and non-Labor alike.
The fusion of the non-Labor parties and the emergence of a
disciplined and increasingly successful Labor Party at the end of
the Parliament's first decade set the pattern for a century of
two-party parliamentary politics.(51) By facilitating
Executive dominance, the rise of political parties profoundly
undermined the notions of responsible government upon which the
Parliament was designed.

Party discipline is not immutable. Both sides
have split at times, and then taken some years to rebuild their
identity. But when John Howard said that in politics 'disunity is
death',(52) he was talking in the context of a two-party
system. When one side fractures the other benefits. Despite changes
of governments brought about by votes in the legislature in 1941
and 1975, on the whole, the power to make and break governments has
not been much utilised by the Parliament. The pattern set by 1910
endures, so that any change in the exchange between the legislature
and the Executive occurs in the overwhelming context of party
discipline. Indeed to talk of an 'evolving' relationship may be to
overstate developments; despite changes to electoral laws, revised
standing orders, greater Senate scrutiny, the development of more
parliamentary committees and even a constitutional crisis, the
substantial dominance of the Executive over Parliament remains
after nearly a century.

Indeed some developments have strengthened the
hand of political parties. For example, the introduction of
compulsory enrolment in 1911 and compulsory voting in 1924, along
with a system of public funding, contributed to the endurance of
the two-party system and so to party, rather than responsible,
government.(53) By compelling citizens to vote, the
major mainstream parties stand to benefit from the larger base, and
are not forced to mobilise significant numbers of voters.

On the other hand, changes to electoral laws for
the Senate introduced some tension in the political equation. The
option of proportional representation was considered but rejected
in 1902 because it would encourage 'fads' and challenge the
dominance of the three major parties.(54) Only in 1949,
after extensive debate in the Parliament, did Senate elections
adopt an electoral system based on proportional representation.
While Labor's aim in the short-term was to retain a significant
number of senators after probable defeat at the 1949 poll, Labor
and the Coalition both expected the long-term continuation of major
party dominance, but with more stable blocs of
representation.(55) Paradoxically, the effect was to
increase significantly the prospects of minor party representation
in the Upper House, weakening the hold previously enjoyed by Labor
and the Coalition. Since then it has been difficult for governments
to take or retain control of the Senate. Since 1949 governments
only controlled the Senate after the 1951, 1953, 1958 and 1977
elections, while the 1967, 1974, 1980 and subsequent polls returned
Senates in which representatives from the Democratic Labor Party,
the Australian Democrats or a combination of different groupings
and independents have held the balance of power.(56)

It can be argued that proportional
representation allows the Senate to act as a check on the
Executive, and so enhances the power of Parliament. This was the
appeal used by Australian Democrats founder Don Chipp in promising
to 'keep the bastards honest'.(57) Minority parties
holding the balance of power have been able to extract major
concessions from governments, or to combine with opponents to block
legislation. This displeases Ministers, who point to the
malapportionment of Senate elections which allows small parties
from small states to wield authority beyond their numerical
support. As one Australian Prime Minister memorably commented, for
a frustrated Executive Senators can appear mere 'unrepresentative
swill'.(58)

Yet the Executive is not entirely in the thrall
of the Senate. Section 53 of the Constitution provides that the
Senate can neither amend nor initiate bills appropriating monies
for the ordinary annual services of government or raising taxation.
(It can, of course, ventilate and press such measures through a
variety of formal and informal means). If disagreement between the
Houses occurs the government can seek a double dissolution followed
by a joint sitting of both chambers (s. 57). Ministers can also
defer parliamentary scrutiny and avoid early disallowance by making
subordinate legislation when the Parliament is not sitting.
Moreover, a vast array of matters can be dealt with
administratively without either primary or secondary legislation
and without consulting Parliament.

Other developments have not so constrained
executive government. Government largely controls the legislative
agenda although the extent of its leverage is dependent on a number
of factors. Hence, Senate numbers usually require the Executive to
adopt a far more accommodative approach in that Chamber than in the
House of Representatives. While Standing Orders and House of
Representatives procedures have changed over time, the rules
governing debate have been subject to one constant they are
determined by the majority. This means, in effect, the Executive.
Indeed Prime Minister Paul Keating once characterised Question Time
as 'a courtesy extended to the House by the Executive Branch of the
Government'.(59) Because in the House of Representatives
the Executive must by definition 'have the numbers', it also has
significant influence over when and how matters come before
Parliament. A simple, if imperfect, test of Executive dominance is
to ask who proposes legislation for parliamentary debate. From 1901
until 1982, 99 per cent of bills introduced to the Parliament came
from the Executive.(60) The election of some Independent
Members and more minor parties to the Senate has made a modest
difference to the business of the legislature. Even so, since 1983
only four per cent of the combined sitting time of both Houses has
been spent on bills proposed by private Members or the
Opposition.(61)

G. S. Reid characterised Executive dominance of
the procedures required to pass legislation as a constant theme of
the century of Parliament. He wrote in 1982:

the Executive Government, and its official
advisers, have been the principal beneficiaries, and sometimes the
architects, of the Parliament's weaknesses in passing
legislation-particularly the House of Representatives. They have
helped to introduce the 'Gag' and 'Guillotine' procedures to
forestall debate; they have utilised the 'floodgate technique' to
encourage 'legislation by exhaustion' ... Executive Ministers and
their officials have [also] benefited from the Standing Orders and
Speaker's ruling providing that only Ministers of State may propose
taxation measures.(62)

These procedural techniques open to the
Executive limit debate on legislation by both non-government
Members and the government's own backbench. Executive control is
also assisted by the relative infrequency of parliamentary
sittings. Uhr and Wanna report that annual sitting days since 1983
varied between 38 and 79 days for the House of Representatives and
53 to 92 days for the Senate.(63)

Yet Parliament is not without meaning or
consequence. While procedural control by the Executive has created
a forum dominated by Ministers, oppositions can use the legislature
to some effect. Question Time provides a daily display of
adversarial politics, and an opportunity to challenge the actions
of Ministers. A sustained campaign against a vulnerable Minister
can undermine credibility. While party room solidarity makes forced
resignation unknown, prime ministers can prompt a decision by an
embattled Minister to step down. Question Time was one forum used
by the Liberal and National Parties to considerable effect against
Labor Sports Minister Ros Kelly in 1994, prompting her to leave
politics entirely.(64) Parliament exerted similar
pressure on three Ministers-John Sharp, David Jull and Peter
McGauran to resign office in the first year of the Howard
government following criticism of their travel claims. It is,
however, broader electoral considerations, rather than the censure
of the Parliament, which determine the fate of Ministers under
attack. Despite hopeful newspaper editorials, there is no
Australian tradition of ministerial resignation following
parliamentary scrutiny.(65)

The most famous confrontation between the
Parliament and the Executive occurred when Coalition and
Independent Senators combined to defer a vote on the 1975 federal
Budget. Opposition Leader Malcolm Fraser announced his intention to
force a general election. The Executive under Prime Minister Gough
Whitlam resisted, and threatened a half-Senate election. Thus
emerged a struggle threatened since Federation, between a duly
elected government with a majority in the Lower House and a Senate
keen to exercise the independent authority implied in the
Constitution. The resulting constitutional crisis saw the
Governor-General decide in favour of the Senate, dismissing the
government and dissolving Parliament. Though the circumstances,
motivations and justifications for the dismissal are much
contested, and the Governor-General's use of the reserve powers
often called into question,(66) 1975 showed that in
extreme cases the Parliament can reverse Executive dominance. The
price for the system, however, was high indeed.

An altogether less dramatic development in the
relationship between the Executive and the Parliament has been an
increased use of parliamentary committees. In 1980 Martin Indyk
wrote glowingly of the effect of such committees:

as unlikely as it may seem at a time when
parliament's demise is being lamented by most observers,
parliament's backbenchers are busy using the committee system to
revitalise their institution and thereby challenge the dominance of
the executive. Put simply, they are trying to put the word
'responsible' back into Australian government.(67)

There have long been committees to deal with
administrative matters, but the past three decades have seen a
significant expansion of committee structures and agendas. Drawing
on American experience, and the temper of the times, Senators in
the late 1960s began to use committees for sensitive
investigations. The subsequent creation of a system of legislative
and general purpose committees in the Senate was a major
breakthrough. Together with what was initially a separate system of
Estimates Committees, these subject specialist bodies were able to
look at specific matters refereed to them by the
Senate.(68) The trend to a more active committee system
was confirmed by a 1976 report of the Joint Committee on the
Parliamentary Committee System. It recommended the abolition of
existing committees and the establishment of two new systems, one
for each House.(69) While the 1976 report was not
implemented, committee activity grew and finally found expression
in 1987 reforms. These 'revolutionised' the committee system,
creating eight standing committees for the House of Representatives
to oversee the actions of various government
agencies.(70) While the new committees depended on the
Executive for references and resources, Australian parliamentary
committees have evolved into a mechanism for scrutiny of, and
comment on, government action.

Yet developments in electoral laws, the role of
the Senate and the evolution of committees must be balanced against
the continuing dominance of party discipline. Loyalty to party has
been the dominant theme of a century of national Australian
politics. In the period from 1909 to 1987, 99 per cent of
Members of the House of Representatives belonged to the major
parties.(71) Little has changed in a decade to change
this phenomenon. Despite media speculation about party dissidents
and rebels, 'crossing the floor' remains rare. On only eight
occasions since 1901, five of them before the fusion of the major
parties, was the government defeated on the floor of the House of
Representatives and forced to resign. More common is the threat
voiced by MPs that they intend to cross the floor on a
given issue, prompting a government rethink and an accommodation
behind the scenes. Recent disquiet on the Liberal Party backbench
over mandatory sentencing is one example, with the Executive forced
to give some ground amidst media speculation over a possible split
in the parliamentary party. The pattern in the Senate is more
complex, given the presence of Independents and minor parties, but
voting on party lines remains the norm. Occasional exceptions, such
as two Tasmanian Liberal Senators who crossed the floor defending
the local fruit industry in 1977, are outweighed by the standard
pattern of a chamber dominated by party considerations.

So for all the significant changes, nothing has
broken the mould of Executive-Parliament relations established by
1910. One despairing editorial argued that decades of:

fine tuning in federal politics have now created
a system of government which has reached the ultimate position
which says as far as responsibility is concerned, the bucks stops
nowhere.(72)

This conclusion-that ministerial responsibility
to the Parliament has been replaced by that to the party-is widely
accepted, and not challenged here. Reid and Forrest coined the
evocative term 'the trinitarian struggle'(73) to
describe interaction between the House of Representatives, the
Senate and the Executive. It is a powerful description,
particularly apt for moments of drama such as 1975. Yet the
consistent winner of this struggle has been the Executive. While
the scrutiny of Question Time, the character of the Senate, and the
probing of parliamentary committees constrain the power of
government, the Parliament has remained a forum dominated by
Ministers of state.

Certainly this is the perception of those who
work in and around Parliament. A study by Dr David Lovell
found that 63.7 per cent of parliamentarians surveyed in 1992
expressed a preference for more time to be spent considering
legislation.(73) A couple of years earlier, in 1989,
Greg McIntosh asked Senators and Members, parliamentary officials
and the media gallery about their view of the Executive-Parliament
relationship. McIntosh found that 43 per cent of Senators and
Members, 47 per cent of the Press Gallery and five per cent of
parliamentary officials thought Parliament effectively checked the
Executive. A majority of the three groups agreed that Executive
dominance is the result of party discipline, though only Senators
and Members thought that this discipline was needed to ensure the
smooth running of Parliament. Around 75 per cent of those surveyed
judged the increasing volume and complexity of legislation was
fuelling Executive dominance, with the same number agreeing that
the Senate has evolved into a more effective source of scrutiny.
The House of Representatives was labelled largely ineffectual in
checking the Executive by 80 per cent of Senators and Members,
66 per cent of officials and 39 per cent of the media
representatives interviewed.(75) As McIntosh
concluded:

although there has been some evidence of a
limited 'parliamentary revival' in recent years, particularly in
the Senate, it has not been on a large enough scale to
significantly lessen Executive control of the
Parliament.(76)

When reality proves stubborn, one option is to
redefine the role of various players. In the mid-nineteenth century
Walter Bagehot was already narrowing expectations of parliament.
Parliament makes laws, of course, but on the command of the
Executive. Yet while the Executive rules, suggested Bagehot, the
legislature contributes to public life through its expressive,
teaching and informing roles. Now even these functions have been
constrained by party discipline,(77) though they remain
standard defences for the work of parliament.

Recent thinking takes Executive dominance as
given, but like Bagehot seeks to redefine the function of the
legislature. The eminent commentator Geoffrey Brennan, for example,
offers three pictures of parliament. The first evokes parliament as
a forum for discussion directed towards determining the public
interest. The resulting deliberation over policy direction leads to
a convergence of views and then legislation. Brennan's second image
sees parliament as the embodiment of the vote, the committee of
representatives which can translate individual preferences into
collective decisions.

Neither view really goes to the function of a
contemporary parliament, but Brennan's third representation
outlines the role parliament plays in the wider electoral
environment. As Dr Neal Blewett and others have argued, the
role of parliament is more than legislative, extending to the
public contest between parties for government.(78) An
extension of this is the view that parliament is a 'political
prize'.(79) This conception sees parliament as:

... a prize awarded to the winner of an
electoral competition, and it is the process of electoral
competition itself rather than the details of parliamentary
procedure that is central to the whole democratic
process.(80)

Parliament then becomes the forum for a
continuing contest between rival camps, carrying forward the
partisan argument between elections. The benefits of scrutiny and
accountability are important but they become secondary to the
essentially political function of the legislature.

This picture of parliament has more application
to the House of Representatives than the Senate, for the Upper
House has a different relationship with the Executive. While a role
as the states' house quickly proved idealistic, the Senate has
acted on its role as a House of review.(81) Proportional
representation has changed the mix of players. The presence of
minor parties, creating a delicate balance of power, has encouraged
the Senate to use its capacity for idiosyncratic judgement.
Governments assume their majority in the House of the
Representatives but can rarely take the Senate for granted.

To see the legislature primarily in political
terms offends a traditional discourse of discussion, representation
and legislation. Yet observation supports a more pragmatic
description of Parliament. The continuing electoral campaign fought
out in the legislature encourages the Executive to limit
opportunities for scrutiny of its actions. Electoral considerations
turn Parliament into a contest in which Members concede no ground
to the opposition. Parliament is an opportunity for ministerial
aspirants to prove themselves by excelling at adversarial debate,
again highlighting the predominance of party considerations. The
Clerk of the Senate commented in 1990 that 'the modern party is a
device for ensuring that a government formed by that party is not
responsible to the Parliament'.(82) In Bagehot's terms
parliament is a dignified institution, defined by its subordinate
role to the Executive. The efficient part of government, the place
where authority resides, is the governing party.(83)

The dominance of the Executive is entrenched by
party discipline, procedural control, a monopoly of information and
advice, increasing government complexity and workload, and the
scarcity of parliamentary time. Wal Fife, then Manager of
Opposition in the House of Representatives, protested in 1989:

this Opposition will oppose and protest at every
available opportunity at the way the Government is treating this
House. It is treating it with contempt. It is nothing more than a
charade. If it did not have to come here to conduct the business of
the government of Australia, it would not come at all. We are
sitting for fewer days each year. There is less opportunity for
private members to raise matters of importance to the public. There
are fewer opportunities to ask questions ... This is an absolute
disgrace.(84)

David Lovell has argued the pressures of
responsible government, with the need to maintain a constant
majority, provided an incentive to create disciplined parties. A
primary requirement of responsible government became an
impediment.(85) G. S. Reid adds that the power
relationship in Parliament is exactly contrary to the expectations
of the constitutional founders; instead of Parliament controlling
the Executive, confidence has been replaced with
control.(86) As Reid observed:

... a new set is growing up in political studies
in which parliaments are considered weak and uninteresting
institutions overshadowed by the flamboyant features of press,
parties and pressure groups. Parliaments are treated as dead dogs
and parliamentarians as sheep cowering before a wolf-like
executive. The whole business of what goes in parliament is treated
like some poor and motheaten joke.(87)

The literature on the Australian Parliament
generally expands on Reid's theme that party discipline has
displaced parliamentary deliberation.(88) As one
editorial opined:

MPs undoubtedly work hard. But how useful is the
work? ... Backbench MPs have little chance of introducing or
amending legislation. Debates are a foregone conclusion. The whips
crack their orders and MPs toe the party line ... The real debate
takes place in the party. Even here, however, there is a tendency
for the executive to clamp down on independence or
outspokenness.(89)

The pressures placed on parties by the
competitive bi-polar system in place since 1910 has made discipline
necessary, and independence becomes seen as a threat to continued
electoral success. Yet even a Parliament dominated by the Executive
has its own strengths. It can be argued that a strong Executive
leads to coherent policy directions. And, Executive dominance of
the Parliament, while enduring and significant, is not absolute.
Parliament has found some new ways to impose itself on the
Executive, providing a glimmer of hope for parliamentary
reformers.

Despite the hold on the Parliament enjoyed by
the Executive, on occasion parliamentary scrutiny ensures
accountability. Even the standard scrutiny of estimates hearings,
parliamentary debate and questions with and without notice act as a
check on excessive government zeal. When Parliament is sitting
there is scope for real problems to be uncovered. Parliament
provides a potent forum for embarrassing the Executive into
remedial action.

An expanded committee process has been
particularly significant in restoring some balance. The late James
Dobie, speaking in the House of Representatives, stressed the
importance of Senate Estimate Committees as a restraint on the
Executive. He argues:

One cannot talk of the role of the executive
within the parliamentary system without mention of the remarkable
growth of Senate Estimates committees in the last decade and more
... there can be no denying that executive government is made to
account for itself in a way that is not enjoyed by the House of
Representatives.(90)

He is backed up by the enthusiastic Martin Indyk
who comments:

by eliciting information and by using it to
publicise and scrutinise government activity, or to advise and
criticise government on policy issues, committees have enhanced
parliament.(91)

Committee virtues include training for
parliamentarians, opportunities for the community to interact with
Parliament through public hearings, regular reports on matters of
public importance, and an alternative source of information on
contentious issues. And it has been argued that committees, though
controlled by the Executive:

have provided a real linkage between the House
of Representatives and the community, and many believe that their
inquiries have provided a major stimulus for the political
agenda'.(92)

Even when rejected at first, committee findings
tend to resurface in later policy thinking, particularly as
backbench committee members advance to the Treasury benches.
Examples of committees formed for specific policy scrutiny can be
found in the 39th Parliament's Senate Select Committee on The New
Tax System and the Senate Select Committee on the Socio-Economic
Consequences of the National Competition Policy.

Further, the trinitarian struggle provides the
Senate with a particular interest in holding government to account.
In recent decades the Senate majority has been shared between the
Opposition and minor parties. This provides an incentive to
scrutinise Executive decisions, and provides government with a need
to negotiate. Legislation to create a new tax system for Australia
under Prime Minister Howard, for example, depended entirely on the
cooperation of the Australian Democrats in the Senate. It has
always been recognised that the Australian Senate is amongst the
most powerful Upper Houses in western democracies.(93)
For Reid and Forrest:

the Senate's life, since the major parties lost
their capacity to control its majority, has been a period of
wholesale reconstruction of its parliamentary methods. The
Executive Government has been called to face an unprecedented range
of parliamentary checks upon its legislative and administrative
initiatives. The changes made have promoted new assessments and
evaluations of the Senate's role.(94)

And further:

the Senate is plainly the Executive Government's
hair shirt. Its continuing relationship with executive ministers
and departmental officials adds a valuable human dynamic to the
parliamentary scene, notwithstanding that most ministers of state
would prefer it otherwise.(95)

Like the House of Representatives, the Senate is
a forum for continuing partisan politics, and its decisions must be
read in that light. Unlike the Representatives, political advantage
can accrue from opposing the government, which provides some
measure of restraint on the Executive.

The burden of our argument is that Executive
dominance structures the relationship between Ministers and
Parliament. Though party loyalty within the electorate is
declining, the persistence of single member constituencies and
preferential voting ensure parties will remain in control of
Parliament. A very long-term trend may see more Independent Members
elected, but the pattern set by 1910 seems set to persist for some
time. The ideal of a chamber which is a forum for discussion
followed by the casting of votes free from party discipline remains
fanciful. While parties control the Executive, and the Executive
the Parliament, real reform without fundamental constitutional
change is not possible. In this we concur with former Speaker Sir
Billy Snedden, who argued that 'the major obstacle to reform is the
ever increasing constraint of party discipline'.(96) Few
executives embrace self-denying ordinances to limit their own
power.

When McIntosh asked parliamentary actors about
possible improvements to Parliament they expressed preferences for
a more independent Speaker's role, an extension of Question Time,
additional research and support staff for Senators and Members and
more time for bills from private members.(97) Such
measures, many argued, would help address the imbalance between the
Parliament and the Executive. John Uhr offers a similar list of
possible reforms, and adds the use of proportional representation
for Lower House elections, larger parliaments, more time for
deliberation, a focus on legislation and scrutiny, and more scope
for the examination of spending.(98) Neal Blewett, a
Minister in the Hawke and Keating Governments, suggests not
allowing Ministers to be drawn from the Upper House would take
ministerial ambitions from the equation and so allow the Senate
greater independence.(99)

But for reform proposals such as these to become
reality, there must be incentive for the Executive, as the body
ultimately responsible for implementation. This is unlikely as the
only actors with the power to reform are those whose influence
would be curtailed. Periodic changes to the relationship are the
result of external drivers such as zealous committees or unforeseen
crises, rather than a product of executive action. Only the
powerful role of the Senate, and the work of parliamentary
committees remain as significant structural checks on the power of
Ministers.

It is possible to read the relationship between
the Executive and the Parliament in contrary ways. On the one hand,
those who wrote the Australian Constitution emphasised the need for
flexibility and development. Arguably the founders would be happy
with developments over the past century. After all, the basic
institutions have survived, the Commonwealth remains a
parliamentary democracy, and the apparently incoherent principles
of responsible government and federalism have found a rough
equilibrium. The 'co-existence' championed by Parkes and Barton has
prevailed, even through the crisis of 1975.

This paper and, it must be said, most
constitutional commentators, suggests an alternative view. Here the
founders are held at fault for constructing a folly. All of
Tuchman's prerequisites-warnings of counterproductivity at the
time, feasible alternative course of action, and group
responsibility and persistence beyond that group's political
lifetime-are evident in the founders' decision to stay silent on
the nature of the Executive's relations with the Parliament.

The Constitutional Convention records show a
strong shared belief in responsible government. Yet, pursuing a
policy contrary to self interest, the presumption was not made
explicit, and the lacunae allowed Executive domination. The
founders left a vacuum at the centre of their Constitution, and
Ministers have filled a space which might otherwise belong to the
Parliament. Legislative power was to be vested in 'a Federal
Parliament, which shall consist of the Queen, a Senate, and a House
of Representatives' (s. 1 of the Constitution), but in
practice control over the Parliament's agenda, its legislative
program, order of business and even frequency of meeting are all in
the hands of ministers. As Reid suggests somewhat dramatically,
'the villain is the executive, the victim the House of
Representatives, and the potential saviour, the
Senate'.(100)

Could the founders have made different choices?
We cannot demand of a constitutional delegate the certainty granted
by hindsight, though there were warnings aplenty of impending party
and Executive domination. The Conventions show widespread agreement
that responsible government was the preferred model for Australian
democracy. By responsible government, delegates had in mind
ministerial accountability to the Parliament. In deciding not to
spell out the requirement for responsible government, the
constitutional authors bowed before the difficulty of codifying
convention and tradition. In the words of Professor Greg Craven,
they understood that:

our constitutional system depends for its
efficacy upon a pervasive constitutional psychology that is the
product of centuries, and cannot be reduced to
writing.(101)

So the founders gambled instead that established
practice in colonial parliaments would transfer without impediment
to the national legislature. It proved a poor choice, but
understandable in the circumstances. Only some understood that
independent voting by moving coalitions of interest, the familiar
nineteenth century pattern of parliamentary behaviour, was already
under threat. Organised political parties were a fact at the time
of the Constitutional Conventions, but they did not yet impose a
full measure of party room discipline. Delegates in the 1890s could
not anticipate the world of 1910.(102) As Alfred Deakin
later conceded, with the rise of political parties '...
responsibility on the British model has ceased to
exist'.(103)

Yet the decision to be silent on the
requirements of ministerial accountability set a pattern of
Executive dominance which continues. In the trinitarian struggle,
significant advantages are held by Ministers. Their power is not
absolute, but it is less constrained than the founders might
expect. Parliament has become the forum for partisan struggle
rather than a place of review and reckoning. This contrasts with
other parliamentary systems in which a proportional voting system
produces a wider spread of party representation, and so the need to
build and maintain coalition. It contrasts even with the original
British model, in which frequent sitting days, and some tradition
of conscience voting, ensure more thorough scrutiny of government
action. The Australian pattern of strong government by an Executive
which can be confident of its House of Representatives majority is
the product of a constitutional folly entrenched by the voting
system. We gain much in stability and policy coherence through
Executive dominance, but lose the vitality and the innovation
possible when Parliament is a more equal player.

see Neal Blewett, 'Parliamentary Reform: Challenges for the
House of Representatives', Australian Quarterly, vol. 65,
no. 3, pp. 1-14, 1993; Geoffrey Brennan, 'Australian Parliamentary
Democracy: One Cheer for the Status Quo' in Department of the
Senate, Views of Parliamentary Democracy, Papers on
Parliament number 22, Canberra, 1994; G. S. Reid,
'Parliamentary-Executive Relations: The Suppression of Politics' in
Henry Mayer, ed., Australian Politics: a Second Reader,
Cheshire, Melbourne, 1970.

see Sir Daryl Dawson, op. cit. for a more complete account. See
also Helen Irving, To Constitute a Nation: a cultural history
of Australia's Constitution, Cambridge University Press,
Cambridge, 1999.

in Sir Daryl Dawson, op. cit., p. 8.

ibid., p. 9.

After significant work by Andrew Inglis Clark, according to
Peter Botsman, who chronicles Inglis Clark's role in Federation in
some detail in Peter Botsman, The Great Constitutional Swindle:
A Citizen's View of the Australian Constitution, Pluto Press,
Sydney, 2000.

Official report of the National Australasian Convention
debates, Adelaide, March 22 to May 5,1897, Govt. Printer, Adelaide
1897, p. 443-4.

Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, op. cit., p. 23.

see John Uhr, 'Doctrines of Responsible Government' in
Deliberative Democracy in Australia: The Changing Place of
Parliament, Cambridge University Press, Melbourne, 1998, for a
discussion of the contributions made by these men to the Australian
constitutional tradition.

Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, op. cit., p. 280.

ibid., p. 383.

Brian Galligan, op. cit., p. 3.

The Swiss model allows for an elective ministry in which
ministers remain in their position for the entire period between
elections, thus removing the party political manoeuvrings that can
create instability and bring down governments. See G. S. Reid and
Martyn Forrest, Australia's Commonwealth Parliament 1901-1988:
Ten Perspectives, Melbourne University Press, Melbourne,
1989, p. 306. Refer: Australasian Federal Convention Debates,
Sydney, 17 September 1897, pp. 782.

ibid., p. 307.

ibid., p. 308.

Michael Crommelin, op. cit., p. 138.

ibid., p. 137.

Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, op. cit., p. 37.

see G. S. Reid 'Parliamentary-Executive Relations: The
Suppression of Politics', op. cit., p. 500, or Brian Galligan,
op. cit., p. 1 for a more thorough listing of the sections of the
Constitution that relate to the Parliament-Executive relationship.

Michael Crommelin, op. cit., p. 147.

Official report of the National Australasian Convention
debates, Sydney, 2 March to 9 April, 1891, op. cit., p. 335.

Don Aitkin, 'Stability and Change' in Stability and change
in Australian politics, Australian National University Press,
Canberra,1982, pp. 14-15.

G. S. Reid and Martyn Forrest, op. cit., p. 22.

Ian Marsh, op. cit., p. 299.

In Ross McMullin, The Light on the Hill: the Australian
Labor Party 1891-1991, Oxford University Press, Melbourne,
1991, p. 71.

John Uhr and John Wanna, 'The Future Roles of Parliament' in
Michael Keating and Patrick Weller, eds, The Future of
Governance: Institutions, Allen and Unwin, Sydney,
forthcoming, p. 2.

G. S. Reid and Martyn Forrest, op. cit., p. 23.

While the system has accommodated the entrance of minor parties
such as the Australian Democrats and the Democratic Labor Party,
the authors see the Australian system as essentially bi-polar, with
the Country and then National Party forming part of the non-Labor
Coalition with the Liberal Party of Australia.

Then Opposition leader John Howard made this comment at a press
conference given
17 July 1987 on his retention of the leadership after the 1987
election.

see G. S. Reid and Martyn Forrest, op. cit., pp. 19-21 for a
discussion of the effects of electoral law on the two-party system.

ibid., pp. 15-16.

John Uhr, 'Rules for Representation: Parliament and the Design
of the Australian Electoral System', Department of the
Parliamentary Library, Research Paper no. 29, 1999-2000.

Ken Turner, 'Parliament' in Rodney Smith, ed., Politics in
Australia, Allen and Unwin, Sydney, 1993, p. 97. From 1993 to
1999 the balance of power was shared by the Australian Democrats,
the Greens and Indpendents. From July 1999, the Australian
Democrats have held that position alone.

Chipp made this comment in the lead up to the 1980 federal
election. It was reported in The Australian, 23 September
1980, p. 1.

Paul Keating made this famous remark during Question Time in
the House of Representatives, Debates, 4 November 1992,
,p. 2549.

G. S. Reid, 'The Parliament in Theory and Practice', op. cit.,
p. 50, and see also
Sir Billy M. Snedden, op. cit., pp. 73-4. The guillotine procedure,
introduced in 1918, is employed by the governing party(ies) to
limit the time allowed for debate. The gag is the procedure
involved in the closure of debate. These terms are explained in
more detail in House of Representatives practice, L.M.
Barlin, ed., 3rd ed., AGPS, Canberra, 1997, pp. 416-17 and
490-2.

John Uhr and John Wanna, op. cit., p. 6.

see John Uhr, Deliberative Democracy in Australia: The
Changing Place of Parliament, Cambridge University Press,
Melbourne, 1998, pp. 152-8 for a comprehensive analysis of the
Kelly case. For an interesting study of the history of ministerial
resignations see Margaret Healy, That's It-I'm Leaving: Travel
Tales from Capital Hill: Ministerial Resignations and Dismissals
1901-2000, Department of the Parliamentary Library,
Chronology, forthcoming, 2000-01.

see Glyn Davis, John Wanna, John Warhurst and Patrick Weller,
Public Policy In Australia (2nd Edition), Allen and Unwin,
Sydney, 1993, p. 79-81.

John Uhr, 'Keeping Government Honest: Preconditions of
Parliamentary Effectiveness' in Department of the Senate,
Parliaments in Evolution: Constitutional Reform in the
1990s, Papers on Parliament Number 29, Canberra, 1997.

Delegates reading then contemporary literature about the future
of Parliament in Britain would have encountered predictions that
the significance of Parliament would decline in conjunction with
the rise of political parties in the work of Maine (1885), and that
of Ostrogorski, Low and Lowell (1892-1908). These are described in
J. R. Archer, 'The Theory of Responsible Government in Britain and
Australia' in Patrick Weller and Dean Jaensch, eds, Responsible
Government in Australia, Drummond Publishing, Melbourne, 1980.

Alfred Deakin, op. cit., p. 285.

Vision in Hindsight: Parliament
and the Constitution Series

1.

Federal Parliament's Changing Role in Treaty Making and
External Affairs Research Paper No. 15, 1999-2000, by
Anne Twomey